Pages Numbered Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 1 Opposing Affidavits (Affirmations) 2 Reply Affidavits (Affirmations) 3 Affidavit (Affirmation) Other Papers Upon the foregoing papers, it is ORDERED that the motion by the plaintiff for an order, pursuant to CPLR 306-b, extending the time to serve the defendant is determined as follows. In January 2022, the plaintiff commenced this action asserting claims for, inter alia, defamation and intentional infliction of emotional distress. The plaintiff alleges that the defendant made false accusations that he had engaged in sexually inappropriate behavior with her minor daughter. The parties had previously been involved in a romantic relationship during which the defendant and her daughter lived with the plaintiff. In January 2021, the defendant obtained an order of protection against the plaintiff and the plaintiff later obtained an order of protection against the defendant. After commencing this action, the plaintiff hired a process server who allegedly served the defendant at her place of business, the City College of New York School of Professional Studies (CUNY) in Manhattan. The plaintiff subsequently moved for a default judgment and the defendant cross moved to dismiss the complaint for lack of personal jurisdiction. The defendant alleged that she had not been served and had moved to California as she was working for CUNY remotely. This Court referred the motions to a traverse hearing. The parties conducted discovery, including obtaining security camera video from CUNY, which demonstrated that the process server had not served the defendant as claimed in the affidavit of service. The plaintiff subsequently withdrew his motion for a default judgment and now moves, pursuant to CPLR 306-b, for an order extending the time to serve the defendant. Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant a motion for an extension of time within which to effect service of the summons and complaint for good cause shown or in the interest of justice (see Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95; Wells Fargo Bank v. Ciafone, 188 AD3d 957; State of New York Mortgage Agency v. Braun, 182 AD3d 63). Good cause and interest of justice are two separate and independent statutory standards (see Wells Fargo Bank v. Ciafone, supra; Bumpus v. New York City Transit Auth., 66 AD3d 26). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service (see Wells Fargo Bank v. Ciafone, supra; Bumpus v. New York City Transit Auth., supra). If good cause for an extension is not established, the court must consider the broader interest of justice standard (see Wells Fargo Bank v. Ciafone, supra; State of New York Mortgage Agency v. Braun, supra). In determining whether an extension of time is warranted in the interest of justice, a court may consider, inter alia, diligence, or lack thereof, expiration of the statute of limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for an extension of time and prejudice to the defendant (see Leader v. Maroney, Ponzini & Spencer, supra; Wells Fargo Bank v. Ciafone, supra; State of New York Mortgage Agency v. Braun, supra). Here, the plaintiff submits an affidavit asserting that he did not know where the defendant was living and was unaware that she had moved to California. The defendant contends that the plaintiff made no inquiries to locate the defendant before attempting service. The record demonstrates that the parties had obtained orders of protection against each other and the defendant took steps to keep her home address confidential. However, the plaintiff waited approximately three months after the complaint was filed and personally hired a process server that was apparently unlicensed and subject to numerous complaints. The plaintiff was aware that the defendant was working remotely and took no steps to have his attorneys or a third party determine if the defendant was actually working at the CUNY facility. The defendant cross moved to dismiss in July 2022 and raised significant issues with regard to service but the plaintiff did not move to extend the time to serve until April 2023. Thus, the plaintiff failed to demonstrate that he exercised reasonable diligence in attempting to effect service (see Wells Fargo Bank v. McCarthy, 195 AD3d 983; Nationstar Mtg v. Wilson, 176 AD3d 1087). With respect to the interest of justice standard, the record indicates that the action was timely commenced and the plaintiff believed that service had been made within 120 days after commencement of the action based upon the affidavit of the process server. After the motions were filed, the plaintiff conducted discovery which revealed that the process server had submitted a false affidavit and the defendant had not been served although the complaint was apparently mailed to the defendant’s office. While the plaintiff could have exercised more diligence, it is unclear whether the plaintiff could have actually located the defendant as she took steps to conceal her address. The record also reveals that the statute of limitations has likely expired. Although the plaintiff claims that the statute of limitations would have been tolled pursuant to CPLR 207, it is unclear if the statute is applicable in this case. The plaintiff further submitted an affidavit demonstrating the existence of a potentially meritorious cause of action. In addition, the defendant did receive actual notice of the action shortly after the 120 day period expired and has not demonstrated any prejudice. Under these circumstances, an extension of time to serve the defendant is warranted in the interest of justice (see Wells Fargo Bank v. Boakye-Yiadom, 213 AD3d 976; Edwards v. Brooklyn Hospital Center, 208 AD3d 755; US Bank v. Faracco, 204 AD3d 953; Wells Fargo Bank v. McCarthy, supra). Accordingly, the motion is granted and the time to serve the defendant is extended for a period of 120 days from the date of entry of this order. Dated: September 19, 2023
